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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33101
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I'm in the Navy. During one of my CPR classes i had a

Customer Question

I'm in the Navy. During one of my CPR classes i had a student file a complaint of sexual assault against me, 07-Nov-2015.
I was place on the permanent disability list (PDL) and given a mandatory retirement date of 28-Jan-2016 on or around 26-Nov-2015.
NCIS concluded their investigation on 06 or 07 January 2016.
20-Jan-2016, I moved from my command in Key West Florida to Hallsville Texas under a retirement move.
22-Jan-2016, I was involuntarily extended 30 days with a new PDL retirement date of 28-Feb-2016. I was given TAD orders to the local recruiting station where I muster each morning in uniform.
-22-Jan-2016, I was told by my Legal officer of my command who physically seen the NCIS agents completed investigation that it amounted to hearsay. He also mentioned that the JAG office out of Jacksonville relaid to my command that there was no evidence to warrant a court-martial.
Feb-2016, I was involuntarily extended again for 30 days with a new mandatory PDL retirement date of 28-Mar-2016. I was issue a set of TAD orders to the local recruiting station, again, to muster in the mornings in uniform.
Mar-2016, My retirement under the permanent disability listing was cancelled by my command and they have now submitted paperwork to extend me for additional weeks/months.
Involuntarily extended twice, now my command has cancelled my retirement under permanent disability as of 16-Mar-2016 and NO charges have been filed. I was told this has all been due to my Commanding officer.
I was also told that my CO has done these things because he is seeking guidance from a Navy Victim Legal Counsel (VLC) whom represent the interests of the Coast Guards men civilian wife who claimed i sexually assaulted her during one of my CPR classes.
Can they do this, wasn't i suppose to get legal counsel concerning these three involuntary extensions and/or my command cancelling my retirement under Permanent Disability? No charges have been filed
In GOD's hallowed name help me with some advice!!
Submitted: 8 months ago.
Category: Military Law
Expert:  P. Simmons replied 8 months ago.
Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to helpI am sorry for this dilemma. But not sure I understand the question...are you asking if they can retain you on active duty while this investigation progresses?
Customer: replied 8 months ago.
Prior to 22 Jan 2016 the Jacksonville JAG or Regional Legal Service Office (RLSO) determined there was not sufficient evidence to charge me. This decision was based of the NCIS agents investigation into the matter.No charges have been filed. In accordance with what can they justify extending me not once but twice and now have cancelled my disability medical retirement effectively extending me now for a third time? Let me stress that no charges have been filed and I've been told by my legal officer and my Officer in Charge that RLSO stated there were not pursuing a court martial.
Expert:  P. Simmons replied 8 months ago.
Thanks you.
Can you tell me:
1. Are you enlisted? If so, when is your EAS?
2. If north enlisted, when is your EAOS (end of obligated service)
Customer: replied 8 months ago.
I am enlisted, E6, and my EAOS is December 2017.
Expert:  P. Simmons replied 8 months ago.
Thanks
I am sorry to be the one to bear bad news. But they can hold you. That is, if your EAS is in Dec 17?? They can hold you till then. I understand you are approved for medical retirement. But that is discreationry...meaning, the Secretary of the Navy has discretion...they are NOT required to separate you prior to your EAS. They can hold you. Period.Even with no charges filed.Now...if your EAS comes and they want to hold you? Then need to put you on "legal hold". But the date for your retirement is not the same as an EAS...you are under contract till your EAS...so they can hold you till thenThis is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that they have to retire you, but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.
Customer: replied 8 months ago.
The mandatory disability retirement date means nothing?
Customer: replied 8 months ago.
I filed the necessary paperwork to remain on active duty on permanent disability and was denied at the beginning of Dec-2015 and then a message came out with my mandatory retirement due to disabilities incurred while active duty.Without regard for me or the retirement orders my command can extend me twice totaling 60 days and then just cancel the mandatory retirement issued by the Physical evaluation board and relayed by the office of the Secretary of the Navy?
Expert:  P. Simmons replied 8 months ago.
No...the date is discretionary...it can be moved for cause (like a pending investigation)What you are describing? It sounds like you are going to be charged criminally...frankly I would focus on that rather than than demanding to be released. Again, I am sorry to be the one to have to bear bad news...but they can (and it seems will) hold you as the investigation progresses.If you believe your commander is not treating you fairly? You can file an IG complaint. But as I mentioned? I would be focused on responding to what seems may be pending criminal charges.
Customer: replied 8 months ago.
I was extended twice under an ACC code identity 355, "awaiting physical evaluation board decision." I wasn't extended on legal hold, I was extended on the premise I was awaiting the Physical evaluation board decision.But here's the thing, the Physical evaluation board made a final decision Nov-2015.
Expert:  P. Simmons replied 8 months ago.
I understand. But you need to understand that the Navy can hold you up to your EAS if you are pending a criminal investigation (which seems to be the case) and they do not have to share this with you (they do not have to tell you that they are investigating you). Again, you can file an IG complaint if you believe this is unfair. Just understand that they can hold you if they believe you committed criminal misconduct...right up to your EAS, and beyond if needed (though once you reach the EAS, the rules change a bit...they have to actually put you on "legal hold" to keep you.
Customer: replied 8 months ago.
I'm living in Texas and my command is located in Key West Florida and haven't asked or even mentioned me coming back. They told me they were going to just extend my TAD orders to the recruiting station where I muster in uniform in a parking lot and drive back home.
Customer: replied 8 months ago.
I understand what your saying. But it completely goings against the involuntary extension guidelines. I was given a set of orders to execute mandatory medical retirement. Any extension beyond that date is considered involuntary extension correct?
Expert:  P. Simmons replied 8 months ago.
That is fine...that is, the Navy can do this. Again, you are under an enlistment contract that can ONLY end early if the Secretary of the Navy (or their designee) approves. Again, seems to me they are considering court martial. Hopefully, the investigation will not provide enough evidence to justify going foray and they will release you. But if you are asking can they keep extending you? YES. The Secretary of the Navy can keep you till your EAS and beyond (again, only beyond if they put you on legal hold)If you think this is unfair? Contact the IG and complain...you have that right.
Expert:  P. Simmons replied 8 months ago.
Sorry typo above...foray should be forward.
Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.
Customer: replied 8 months ago.
I've dealt personally with the IG's in Jacksonville and their performance was absolutely disgusting.
Expert:  P. Simmons replied 8 months ago.
I understand. And for that I am sorry. But if you are looking for the answer to "can they hold you"? The answer is yes...that is why I recommend you focus on preparing for criminal charges, in the event that such are preferred.
Again, I am sorry to be the one to bear bad news.
Customer: replied 8 months ago.
It's baffling to me. My issued medical retirement was cancelled and I was extended twice due to an allocation with no supporting investigated statements from any or the 13 other people present.
Expert:  P. Simmons replied 8 months ago.
My experience is that the accused is seldom aware of all the evidence that NCIS has. So it may be there is evidence you are not aware of...
Customer: replied 8 months ago.
Well...there can't be any evidence because I didn't sexually assault her. Also, how do I prepare to go to court martial ot what ever might happen? Oh I never provided a statement written or spoken to anyone.
Expert:  P. Simmons replied 8 months ago.
Good. Keep that up. DO not talk to anyone about this. No one...except a lawyer representing you. If you are lucky, this will pass and you will be retired. If not, good talking to NCIS...they are not your friends and will not help you if you provide them a statement.
Expert:  P. Simmons replied 8 months ago.
Sorry...another typo. Should say do not talk to NCIS
Customer: replied 8 months ago.
NCIS concluded their investigation on 06-January 2016. No charges filed, my administrative data doesn't reflect legal hold, investigation hold it all just seems to be running aground at my expense. I've already forfeited $5,000 of my scholarship and my degree program will now be a 5 year program, so it's cost me an extra year.
Expert:  P. Simmons replied 8 months ago.
There is no requirement they put you on legal hold. You are NOT at an EAS. As I have explained several times. They are paying you active duty salary? They can hold you to investigate. Again, if you feel you are not being treated fairly, contact the IG. IF you believe they will not do their job? Call you congressional representative. But if you need to understand that the fact you are approved for retirement is meaningless...the Navy can hold you if they have cause.
Expert:  P. Simmons replied 8 months ago.
Hi
Experts on this site (myself) are compensated ONLY if the customer (yourself) "rate" or "accept" the answer.Please rate the answer so I may receive credit
Thanks for your understanding
Phil

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